The Taliban are being accused of torturing and killing non-combatants and potentially even ethnic cleansing in Northern Afghanistan. Will these accusations have legal and political consequences?
In recent weeks, photos and videos of Afghan non-combatants being kidnapped, tortured, or executed by the Taliban have emerged steadily from Northern Afghanistan as fighting between the Taliban and resistance forces in the region continues. As irrefutable evidence of horrific war crimes pile up, and more leaders speak out against the violence, the Taliban are sinking into a disaster of their own making. The shocking photos and videos (WARNING – GRAPHIC VIOLENCE) often seem to have been taken by the Taliban themselves.
It is not yet clear if these acts will be internationally classified as breaches of international humanitarian law, the Geneva Convention, or Customary International Law. If the actions continue, it may even be formally classified as a genocide, considering the bulk of the victims have been targeted and accused of Resistance sympathies because they are ethnic Tajiks, Uzbeks, and Hazaras. However, what is clear is that these acts further isolate the Afghan population, especially non-Pashtuns, from the Taliban and drawing the ire of the international community.
The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
Article 8, War Crimes
Rome Statute of the ICC
We do not possess the legal knowledge to untangle the international jurisprudence that may govern the situation in Afghanistan. The fundamental questions over the legitimacy of the Islamic Emirate of Afghanistan (IEA) as a governing body remains unresolved and is central to many legal determinations. Are the IEA the "government" in Afghanistan or, are they merely the "de facto" leadership as the head of the United Nations Assistance Mission in Afghanistan (UNAMA) has stated? Does the International Criminal Court (ICC) have jurisdiction over "de facto" leaders? If so, can it be proven who ordered the Taliban's abuses against citizens? It is a legal quagmire.
Further complicating matters, it is unclear if these abuses would even be an ICC priority or brushed under the rug to support the international community's attempts to remain engaged and find a diplomatic solution to the situation in Afghanistan.
While the Resistance forces have used assassinations to eliminate Taliban targets, they have overwhelmingly restricted their efforts to military and police targets during their campaign and attempted to remain as friendly as possible with local non-combatants. Although this approach may change as the war progresses, the Resistance currently presents the outward appearance of abiding by international humanitarian law norms.
Despite the lack of clarity on the legal front, the atrocities will have an immediate effect on the Taliban in Afghanistan's internal situation, across the region, and on the international front.
The atrocities will galvanize recruiting efforts across the North and swell the ranks of Resistance forces, especially with Tajik recruits.
The Taliban will initially deny the accounts but will eventually be forced to admit some of the atrocities took place. They will produce scapegoats and make a few public displays of trials.
Neutral non-combatants will likely start to provide increased support for Resistance units.
Other Resistance organizations in the country that are ethnically distinct, such as proactive Hazara militias, will redouble recruiting efforts.
Taliban units made up of ethnic minorities will be driven closer to abandoning the IEA and may switch sides. This has already been seen in some instances.
Moderates in the regime will be ostracized as they push away from the more extreme elements of the regime to avoid implications of involvement in war crimes. They will be treated with increased suspicion by hardline elements as desertions increase. Some may even resign or flee the country to avoid legal consequences.
Tajikistan, Uzbekistan, and Iran may begin to take a harsher line with the Taliban, especially since they have ethnic and sectarian ties to those targeted. Regional calls for international recognition will likely subside as evidence of the atrocities attract international attention.
China will not deviate from its current policies but will continue to call for an improvement to the security situation and an inclusive government.
Pakistan's new government appears to be less sympathetic to the Taliban than previous regimes. They will likely continue to take a hard line and adopt a wait-and-see attitude that is largely dependent on the ability of the Taliban to control the TTP.
Of all Afghanistan's neighbors, we feel Tajikistan would be the most likely to be drawn more overtly into the conflict since ethnic Tajiks are targeted more than any other group. Furthermore, tensions are already high between the two governments, given Tajikistan's housing of the NRF and Gulbuddin Hekmatyar's recent inflammatory comments. This could either take the form of increased material support or financing and intelligence sharing with Resistance forces.
The international community has been looking for an excuse to further diplomatically disengage with the Taliban since their betrayal on school policy for girls. Meetings have already been underway internationally to discuss the burqa mandate and the continued erosion of women's rights. The atrocities provide ample ammunition to further isolate the Taliban by moving away from talks in Doha and putting increased pressure on an upcoming loya jirga (grand council).
Financial assistance for development projects could be cut or canceled. We do not think humanitarian assistance funding will be affected in the near term, so long as the Taliban continues to permit aid distribution without their direct involvement. If the Taliban insisted on managing humanitarian aid in an attempt to gain favor from the population, donor countries would reassess their policies.
States who have voiced support for recognition of the IEA will begin to change their tune. Some states may be forced to condemn the Taliban.
Preparations to draw up legal charges are likely already underway.
If international attention increases, especially if the atrocities are perceived as ethnic cleansing, sympathy for at-risk Afghans may rise and there may be a short-term window of increased opportunity for evacuation.
After obscene human rights abuses during their previous regime and consistently violating international humanitarian law during their insurgency, the Taliban probably did not expect to have to deal with the consequences of their actions. However, the fallout of these atrocities is likely to be more severe than they have experienced previously.
Taliban leadership has yet to demonstrate an understanding of the power social media now exerts on world opinion. With international patience running thin, the IEA would need to act decisively to secure ongoing development assistance and keep the path to a diplomatic solution open.
They would also need to reverse the bulk of their most unpopular policies without isolating conservative elements of the Taliban and try to control a large, unruly, and generally inexperienced military that has demonstrated a proclivity to act without regard for human rights or the law of war.
It remains to be seen whether or not the Taliban can cling to power, or if their recent war crimes against non-combatants will be their downfall.